Party Wall Case Law Onigbanjo v Pearson

Party Wall Case Law Onigbanjo v Pearson (2008) stands as a significant decision under the Party Wall etc. Act 1996 (“the Act”). It offers vital clarification on the jurisdiction of party wall surveyors, the extent of their powers under section 10, and the proper interpretation of the Act’s dispute resolution mechanisms. This case has become a reference point for surveyors, legal practitioners, property developers, and adjoining owners navigating disputes under the Act.

In this detailed analysis, we will explore the facts of the case, the legal arguments advanced by both parties, the court’s reasoning, and the broader implications for party wall practice in England and Wales.

Factual Background

The Building Works

The dispute arose from substantial building works undertaken by Mr Onigbanjo (the Building Owner) at 15 Urswick Road, London. This property adjoined that of Mr and Mrs Pearson (the Adjoining Owners) at 17 Urswick Road. The works proposed involved significant interventions to the party wall and surrounding structure, including:

Demolition of an existing rear addition

Excavation to create a light well

Full basement excavation down to the existing cellar level

Underpinning of the party wall

Mr Onigbanjo served a Party Structure Notice on 27 January 2005 under sections 2 and 6 of the Act, notifying his intention to carry out these works.

Consent by Adjoining Owners

On 11 February 2005, Mr Pearson, acting for both himself and his wife, responded to the Party Structure Notice and consented to the proposed works. The written consent specifically referenced safeguarding and underpinning the party wall foundations.

Subsequent Damage

After the works commenced, extensive cracking appeared in the Pearsons' property in or around June 2005. The appointed architect, Mr Al Rasheed Dauda, acknowledged the damage and confirmed it was caused by the Building Owner’s works. He advised that Mr Onigbanjo accepted responsibility and that repairs would be undertaken by the contractor.

However, despite this acknowledgment, the repairs were never executed. Protracted attempts to negotiate financial compensation failed, and the parties reached an impasse.

Triggering the Dispute Resolution Process

Solicitors Involvement

In 2007, after negotiations failed, the Pearsons instructed solicitors to initiate the statutory dispute resolution procedure under section 10 of the Act. They proposed appointing Mr Barry Smith as the agreed surveyor. Failing the appointment of an agreed surveyor, they nominated him as their own surveyor and requested Mr Onigbanjo appoint a surveyor on his behalf.

Non-Participation by Building Owner

Mr Onigbanjo and his solicitors failed to engage with the process. After the statutory 10-day period expired without a response, the Pearsons’ surveyor proceeded under section 10(4)(b) of the Act and appointed a surveyor (Ms Sara Burr) on behalf of Mr Onigbanjo.

The appointed surveyors later selected a third surveyor in accordance with section 10 procedures and progressed the matter to an award.

The Award

On 10 March 2008, the surveyors issued their Party Wall Award. They exercised jurisdiction under section 11(8) of the Act, determining:

Compensation for damage:
£13,495 plus VAT in lieu of remedial works.

Adjoining Owners' surveyor’s fee:
£2,145 plus VAT.

Legal fees:

Barrister’s fees: £500 plus VAT
Solicitors’ fees: £5,189.50 plus VAT

Barrister’s fees: £500 plus VATSolicitors’ fees: £5,189.50 plus VAT

Building Owner’s surveyor’s fee:
£1,150 plus VAT.

The award explicitly noted that the sums were to be paid to the Adjoining Owners, who would then satisfy their obligations to their professional advisors.

The Appeal

Mr Onigbanjo appealed the award to the County Court. The case came before His Honour Judge Marshall QC. The appeal presented two primary grounds:

Ground 1: Lack of Jurisdiction

Counsel for the Appellant (Mr Watson-Gandy) argued that:

A dispute had not arisen under sections 3–5 of the Act because the Adjoining Owners initially consented to the works.

The absence of a counter notice or initial dissent meant that the statutory dispute resolution process under section 10 was not properly engaged.

Consequently, the surveyors had no jurisdiction to make an award under section 10.

In contrast, Counsel for the Respondents (Ms Briggs) argued that:

The surveyors had correctly exercised jurisdiction under section 11(8), which allows adjoining owners to claim compensation for damage and elect to receive financial payment instead of remedial works.

The Act provides multiple routes to jurisdiction beyond sections 3–5. Sections 7, 10, 11, and 12 independently create rights and disputes to be determined by surveyors.

Ground 2: Costs and Reasonableness

Mr Watson-Gandy also challenged the costs awarded under section 10(13):

He argued that the costs awarded were full indemnity costs rather than “reasonable costs” as required by the Act.

He questioned whether barrister’s and solicitor’s fees, incurred largely in relation to pre-litigation advice and correspondence, fell within the scope of recoverable costs under section 10.

He also argued that the award improperly directed payment to third parties (surveyors, barristers, and solicitors), which was beyond the surveyors' statutory authority.

The Court’s Findings

On Jurisdiction

Judge Marshall firmly rejected the Appellant’s jurisdictional challenge. He held:

Multiple statutory gateways exist to invoke section 10, including sections 7 (compensation), 11 (expenses), and 12 (security for expenses).

Section 11(8) specifically applied because it covers situations where damage has occurred, and the adjoining owner elects to take payment in lieu of remedial works.

The absence of dissent under sections 3–5 was irrelevant once damage occurred and the parties could not agree on compensation.

The surveyors had validly exercised jurisdiction under section 10 by reason of the unresolved dispute over compensation.

This interpretation importantly confirmed that surveyor jurisdiction is not exclusively dependent on dissent to the initial notice but can arise independently when disputes over damage and costs later emerge.

On Costs

The court also rejected the Appellant’s challenge to the costs award:

The surveyors had awarded reasonable costs under section 10(13).

No evidence was presented to suggest that the fees were unreasonable.

The inclusion of legal costs incurred by the Adjoining Owners was reasonable and within the surveyors’ jurisdiction, given the nature of the professional advice required to navigate the dispute.

The surveyors’ decision to itemise the costs payable to the Adjoining Owners (rather than directly to their advisers) was lawful and correct.

Judge Marshall concluded that Mr Onigbanjo had declined to participate in the statutory process and could not later object to the costs simply because he failed to contest them at the time.

Key Takeaways from Party Wall Case Law Onigbanjo v Pearson

The decision in Onigbanjo v Pearson provides crucial guidance for parties involved in party wall disputes:

Surveyor Jurisdiction Extends Beyond Initial Notices:
Disputes may arise at many stages, not only upon service of the initial party structure notice.

Section 11(8) Provides a Standalone Right:
Adjoining owners have a right to request financial compensation for damage instead of physical remedial works.

Surveyors Have Authority to Award Legal and Professional Fees:
Costs awarded under section 10(13) include professional fees reasonably incurred in relation to the dispute resolution process.

Participation in the Process Matters:
Failure to engage in the statutory process limits a party’s ability to object later to the decisions or costs awarded.

The Court Supports a Practical and Flexible Interpretation:
The judgment endorses a pragmatic reading of the Act designed to facilitate dispute resolution and prevent protracted litigation.

Conclusion - Party Wall Case Law Onigbanjo v Pearson

Party Wall Case Law Onigbanjo v Pearson remains a leading authority for surveyors and property professionals administering disputes under the Party Wall etc. Act 1996. It confirms that the Act’s dispute resolution framework is broad, adaptable, and capable of resolving issues that arise after initial consent has been given — particularly in cases where damage occurs.

Both building owners and adjoining owners should heed the lessons of this case: full engagement with the Act’s procedures, professional advice, and timely participation in the statutory process can protect parties from unnecessary escalation and costly appeals.

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